Transcript Slide 1

Limited Scope Retainers
Presentation to Pro Bono Stakeholders’ Round Table, November 22, 2012
Doug Wolch, Senior Policy Consultant
Alberta Justice and Solicitor General,
Edmonton
LIMITED SCOPE RETAINERS
(LSR)
• Proposed communication strategies for roll out in
Alberta
• Why is this a good idea? Jordan Furlong, partner with
Edge Consultants, said in part, earlier this year:
“…The modern view of clients—one they share
themselves—emphasizes partnership over
patronization, collaboration over command-andcontrol. Many lawyer-client relationships still fit well
within the traditional model; but many more do not,
and they need a better option. Limited scope retainers
make for a very good start;”
• Rebundling
TO RECAP-What is LSR?
• Lawyer and client agree that scope of legal
services are limited to specific tasks; some are
left to the client
• Also called unbundling
• Scope is set out in a retainer agreement
Examples of what a lawyer may be
retained to do
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Document review or preparation
Discovery or court appearances
Coaching
Legal advice
Research
Negotiation
Why promote LSR in Alberta?
• Consumer demand for affordable legal services
• Fully supportive B.C. Law Society Task Force
report-April 4, 2008
• Steps already taken in other jurisdictions like rule
changes by the Law Society of Upper Canada
• Growing numbers of pro-se litigants, especially
in family law matters
• Information available on the Internet
• Access to justice issues receiving more attention;
example-National Action Committee
LSR EXPERIENCE IN ALBERTA
• Legal Aid’s pilot project: LSR working better
with legal aid clients now than before, because
of better screening and lawyer’s experience
• Pro Bono Law Alberta’s commitment
exemplified by initiatives such as the webinar
project
• Already practiced informally by most lawyers in
the province-an example being, sharing of duties
in the administration of an estate
CANADIAN LANDSCAPE
• www.myontariodivorce.com
• Connects you to Robert Berman’s Ontario law firm, a
great example of dedication to unbundling service
• Providing potential clients with many legal resources,
followed by representation if the client desires
• This in part due to the approval or rule amendments by
the Law Society of Upper Canada in September 2011,
providing guidance in this area
THE EXPERT-SUE TALIA
• California lawyer considered by many to be the leading
expert in the field
• Since 1997 she has limited her practice to private
judging in complex family law matters
• She is, though, a frequent speaker on unbundling and is
a member of the Limited Representation Committee of
the California Commission on Access to Justice
• Conducts a monthly conference call for LSR
practitioners
HER ROADMAP-KEY AND
DESIRABLE ELEMENTS
• Legal cultures differ, but demand for LSR fairly
consistent
• Seven key elements in roadmap to rolling out LSR in a
jurisdiction
• Six desirable, but complementary elements
• Her program was developed to deal with turning an
increasing amount of pro se litigants into a market
niche, an alternative to legal aid and an expansion of
pro bono work
• My presentation today will follow the path that her map
sets out, and identify communication strategies that
could work in Alberta
Key element 1-removal of rule
impediments
• Relevant rules in Alberta: Code of Professional
Conduct Rule 2.01(2) and Rule of Court 2.27
• Code of Professional Conduct permits the use of LSR,
but onus on lawyer to determine if LSR is appropriate
on a case by case basis
• The Rules of Court are more explicit in allowing the
arrangement, as long as the court is informed. Many
still not convinced that retainer will protect them from
extra work and time spent as lawyer of record
• Rule tweaking is being looked at by the LSR working
group. One idea was the adoption of practice notes
Changes by the Law Society of
Upper Canada to the Rules of
Professional Conduct
• A definition of limited scope retainer
• Clear language to specify that the same standard of
competence for full-scope retainers applies to LSR
• Legal services under LSR must be confirmed in writing
• Exceptions to the written confirmation requirement for
certain types of summary advice (no requirement for
written retainer agreement for non-LSR services)
• Guidance on how to manage communications with an
opposing party who is being represented under an LSR
• Feeling by some in Alberta that these are along the lines
of practice advice, rather than ethical guidelines
Key element 2-Support of the local
bench
• Lawyers will be less enthusiastic, if they do not feel the
judiciary is supportive
• A letter of support from Justice A.H. Wachowich was
written to Alberta Justice in 2008
• Judges and Justices at all levels of court in Calgary have
recently been contacted, and are supportive
• For any gaps in judicial support, can target family court
judges with presentations from judges with LSR
experience in other jurisdictions
Key element 3-Formal support from
an authoritative entity
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A judge or justice
A high ranking government official
Alberta Lawyers Insurance Association representative
Ethics advisor
Those in governance positions with the CBA-Alberta
Branch or Law Society of Alberta
• A politician: access to justice is part of many platforms
• This person must be willing publicly and
enthusiastically support the initiative
Key element 4-Ensure that the
private bar knows about and
understands LSR
• Awareness campaign: Youtube video like that used for
AB Justice court case management project; viral is goal
• Send out an on-line information to targeted groups
such as family lawyers, female lawyers and sole
practitioners.
• Follow up with periodic informational e-mails
• LSR workshops
• When awareness campaign done, the educational
component can begin
Key element 5-Training in Ethical
and Practical Issues
• Training information distributed at justice conferences, or at
special presentation by Sue Talia
• Bring in expert speakers to lessen fears such as the lawyer having
to step into a situation over the head of the client, regardless of
the parameters of the retainer agreement
• Lawyers are risk averse: Have plenty of materials including
FAQ’s and troubleshooting guides that they can easily access
• Start earlier: Inclusion of LSR in ethic courses at law school?
• LESA course
Key element 6-Referral Services
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Legal Resource Centre
Family Law Information Centre
Law Information Centre (LInC)
Lawyer Referral
More referrals for public could include showcasing LSR
at events throughout the province like Law Day
Key element 7-Coordinated follow up
• A presence on Solonet
• An LSR section for practitioners on the Law
Society website
• Informational presentations continue
• Surveys of the bar from time to time (Law
Society has already, and a high percentage of the
bar at least dabbles in this kind of work)
• Regional practice groups
Complementary element 1-Key
individual on point
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Someone from LSR working group
A lawyer from the Family bar
A judge from the Family bar
Even with a group, you always need the one
person to drive it. And this, in addition to the
recommendations of the Alternative Delivery of
Legal Services project, may necessitate a new
position being created: Access to Justice
Coordinator (like the sound of that)
Complementary element 2-Court
Administration
• Consult with Court Services, as pro se litigants
are a challenge for Court Services staff. They
would be able to provide input into the parts of
the file, pro se litigants struggle with most
• The ADM of Court Services, would be a good
authoritative voice. A need touched on in an
earlier slide
Complementary element 3-Stable
funding source
• Discretionary government funding or some
form of grant
• Law Foundation
• Lawyers and organizations pay a training fee
• With a stronger opposition in place, and with
financial obligations already made, government
funding may be harder to come by then ever.
Funding often depends on who is championing
Complementary element 4Standardized court forms
• Building on the forms created at Legal Aid (which the
Calgary courts have already provided tacit approval)
• Ontario is farther down the road. We could build on
what they have produced there
• Strike a working group to research and draft forms,
which could be added to the Rules of Court regulations
• There are many forms available on American websites
that could be customized for the Alberta market
Complementary element 5-Prepared
materials
• A lot of practical materials such as intake sheets
and fee agreements already available on the web.
Most from the United States. Sites such as
http://www.calbar.ca.gov
• New materials are being produced all the time
• Again, build on what has been produced at Legal
Aid in the pilot and what is being used in
Ontario
Complementary element 6-A model
business plan
• Something out of the practice advisor’s office? Or
would an outside consultant need be brought in?
• A less expensive option would be to use a template or
precedent, and customize them for use in Alberta.
They could then be available for download
• As the tasks are well defined, the retainer fee, would
most likely cover the services up front. No accounts
receivable, making it more attractive
Next steps
• Discussions of the LSR working group have included a
proposed made in Alberta version of the roadmap, put
into practice with a family law pilot project
• The working group’s mandate is to ensure that
practitioners have access to information and best
practice guidance. This should accelerate the process
• Still waiting on University of Windsor’s Julie McFarlane
and her paper on self-represented litigants; useful
research that will be ready early 2013
Thank you
• Contact information for Doug Wolch, Senior
Policy Consultant:
• Alberta Justice and Solicitor General, Edmonton
• 780-644-1293
• [email protected]